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We know that not every procedure that winds up with a complication is evidence of malpractice.
But let me jump back to the judgment call. How can we possibly overcome and defeat this
incredible defense where the doctor says "Don't blame me. This was a judgment call"? Let me
share with you a story that I think will illustrate very clearly how we can overcome that defense.
My client was 37 years old when he went to the urologist complaining of difficult urinating.
And the doctor does an examination, an internal examination, says "You have all this scar
tissue built up in the tube that takes urine from the bladder and leaves it out through
the ***. That tube is known as the urethra. There's a simply procedure we can do here
in the office that will open up that tube, the urethra. It's known as a cold knife urethrotomy."
And by the way, it is as painful as it sounds. And what the doctor does is he takes a tube,
inserts it into the *** - into the urethra -- takes a knife and cuts away the scar tissues.
Oh and by the way, no anesthesia. In the office. I told you, it's as painful as it sounds.
But you know what? It worked. The problem was it only worked for a few days. So my client
then goes back to the doctor complaining of the same problem. Doctor, I still can't urinate.
And he says, "You know what? Let's do it again." And to the patient says okay. Now he does
it again. Inserts the tube into the ***, takes the knife, cuts away the scar tissue
and it works -- for a few days. One of the things you'll learn very quickly in this scenario
is that what the doctor should have realized is that this was a short-term fix for something
that should have been a long-term cure. So now when the patient comes back and says this
isn't working, the doctor says "No problem. I'm going to bring you into the hospital,
we'll put you to sleep. I'm going to put into your urethra something known as a stint, which
is a coiled metal mesh device. When we're putting it into the urethra what's going to
happen is it's going to spring load open and it's designed to keep that tube open, to allow
the free flow of urine. And the patient says okay, I need to have this done, let's do it.
And the doctor puts him to sleep. He puts in the first stint as deep as possible and
then the thing opens up. Now, what you need to know is this is designed to be permanent.
It's designed to become imbedded into the urethra and it becomes permanent because the
skin tissue (known as epithelia lining of the cells of the urethra) grow over it and
literally becomes imbedded in there. So while the doctor puts it in, he says you know what?
I'm going to put in two back to back, just to make sure. And that's what he does. Now
the patient wakes up, goes home and what do you think happens? Well he no longer has the
problem of difficulty urinating, he has just the opposite effect. He can't stop the flow
of urine. So now he's got a continual flow of urine. And he calls the doctor and he says,
"What do I do? He says take this medication it will help you slow down and it will control
the urine flow." And that's what he does. But there's a massive, massive problem. Within
a few days, the patient recognizes something horrible. Every time this gentleman has an
*** he has excruciating, agonizing, torturous pain in his groin and his ***. He calls
up the doctor saying I don't understand. I'm having horrible, horrible pain. I've never
had anything like this. Doctor says, "Take some pain medication. No problem. You'll be
fine." And he does what the doctor tells him. The only problem? It doesn't work. Because
every time this gentleman winds up having an ***, he has the most horrible pain
of his entire life. He goes back to the doctor's office and he writes in his notes: patient
is having such excruciating pain he has contemplated suicide. And by the way, I've been in practice
25 years I have never in my life seen a doctor write down in his notes that a patient has
contemplated suicide as a result of pain from a complication that he has suffered following
a procedure. He doesn't write it just once -- twice. The patient returns back. Doctor,
you've got to do something. I'm having horrible, horrible pain every time I have an ***.
Doctor says, "Okay. We're going to take you back to the hospital. I'm going to put you
under anesthesia again. And I think by moving those stints, it will cure the problem. Maybe
it's hitting the nerve." What does the patient know? He's not an urologist. He says fine.
He has this done and remember what I told you when I said these stints, these devices
that coil mesh, were designed to permanent. The doctor now goes in and takes his instrument
and tries to move it. Only problem? It doesn't move. It's imbedded in the urethra, in the
urethra. It's imbedded in that skin tissue. He can't move it. He's pulling and he's tugging
and he's twisting. Nothing's moving. Until he starts to pull and pull and guess what?
The mesh falls apart. Now he's pulling out strand by strand of these metal pieces which
are literally destroying the inside of his entire urethra. You're laughing. It's horrible.
It is so horrible. By the time this man is done pulling out every strand of this imbedded
stint -- both of them -- it literally looks like his entire urethra has been destroyed.
And I'm going to jump forward a little bit to tell you that this man needed 18 months'
worth of reconstruction surgery to cut open his entire urethra (on the underside of his
***) to rebuild his entire urethra. And ultimately, when he went to another surgeon
a specialist (urological reconstructive surgeon) who took one look at him, he literally said
to him, "Oh my God. Looks like a bomb exploded in here. What happened to you?" So now let's
go back to the question. How do we defeat the judgment call defense? We brought a lawsuit
against the urologist claiming that it was a departure from good practice to put in these
stints. We said, he said, "Hey. Don't blame me. It was a judgment call to do this cold
knife urethrotomy in the office." And we said, you know what? You're absolutely right. We
take no issue whatsoever with that at all. That was fine. Although it wasn't great for
the long term, still it was acceptable. But here's what the doctor didn't know. These
devices that were intended to go into this urethra, they were only intended to go in
in somebody who was 65 years or older. Why? Because it was proven and documented and test
studies confirmed that patients who were under the age of 65 who still had the ability to
maintain an ***, would continue to get these horrendous, horrific types of pain.
Excruciating, agonizing pain. This urologist didn't know that. Didn't know that. He felt
it was medically acceptable to put in this stint to put into a patient who was 37 years
old. So when we asked him, Doctor, would you agree that this type of procedure is only
to be used in the urethra? "Yes." Would you agree, Doctor, this type of procedure is only
to be used in patients 65 or older? He just looked at me and said, "No. I don't believe
that to be true." We had study after study showing and confirming that you don't put
these things into patients who are under 65 who still have the ability to maintain an
***. So now, here's where the judgment call defense comes in. When a doctor is faced
with multiple options, if all of those options are available to him are medically acceptable
the fact that he chooses one procedure (one treatment option) over another is not enough
for him to overcome that defense. We're going to lose on that issue. But if, let's say out
of 4 different options, the doctor chooses one that is below the standard of care now
we will be able to overcome that defense. Because the law clearly will say that if you
find that one of the judgments the doctor exercised deviated from the standards of care,
then we have proved and shown that there is liability here. It is critical to be able
to overcome that defense in order to show that we have a valid basis for a case. And
many times, there is no other option. The doctor is using just one or two different
choices based upon his considered medical opinion. So I share with you that horrific
story and I apologize if it was a bit graphic, but it's important to understand how incredible
this particular defense is and what we have to go through to have our medical experts
turn around and go, "Hey. The fact that you suffered a complication, we know it can occur.
Does not necessarily mean there's wrongdoing. But if you now exercise your judgment to put
in these stints when it is a clear violation of the standards of care to do that, you Sir
lose." And that's what we did in that case.